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It is hard to practice law ethically. Complying with the formal rules is the easy part.²⁵¹ The rules are not very specific, and they don’t demand very much.²⁵² You may, on rare occasions, confront an extremely difficult conflict of interest problem that will require you to parse the rules carefully. You may even confront a situation in which some ethical or moral imperative compels you to violate the rules.

But by and large, you will have no trouble complying with the rules;

indeed, you are unlikely to give the rules much thought.

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249. Messikomer, supra note 118, at 760.

250. Margaret Steinfels, The Catholic Intellectual Tradition, 25 ORIGINS 169, 173 (1995).

251. See Gordon, supra note 125, at 711.

252. See Cramton & Koniak, supra note 231, at 172.

Acting as an ethical lawyer in the broader, non-formalistic sense is far more difficult. I have already given you some idea of why it is hard to practice law in a big firm (or any firm that emulates a big firm) and live a balanced life; I will return to that point in a moment.

But even practicing law ethically in the sense of being honest and fair and compassionate is difficult. To understand why, you need to un-derstand what it is that you will do every day as a lawyer.

Most of a lawyer’s working life is filled with the mundane. It is unlikely that one of your clients will drop a smoking gun on your desk or ask you to deliver a briefcase full of unmarked bills or invite you to have wild, passionate sex (or even un-wild, un-passionate sex).

These things happen to lawyers only in John Grisham novels. Your life as a lawyer will be filled with the kind of things that drove John Grisham to write novels: dictating letters and talking on the phone and drafting memoranda and performing “due diligence” and proof-reading contracts and negotiating settlements and filling out time sheets. And because your life as a lawyer will be filled with the mun-dane, whether you practice law ethically will depend not upon how you resolve the one or two dramatic ethical dilemmas that you will confront during your entire career, but upon the hundreds of little things that you will do, almost unthinkingly, each and every day.

Because practicing law ethically will depend primarily upon the hundreds of little things that you will do almost unthinkingly every day, it will not depend much upon your thinking. You are going to be busy. The days will fly by. When you are on the phone negotiat-ing a deal or when you are at your computer draftnegotiat-ing a brief or when you are filling out your time sheet at the end of the day, you are not going to have time to reflect on each of your actions.253 You are going to have to act almost instinctively.

What this means, then, is that you will not practice law ethi-cally—you cannot practice law ethically—unless acting ethically is habitual for you. You have to be in the habit of being honest. You have to be in the habit of being fair. You have to be in the habit of being compassionate. These qualities have to be deeply ingrained in you, so that you can’t turn them on and off—so that acting honorably _________________________________________________________________

253. See Frenkel et al., supra note 120, at 706 (“[T]he conditions under which lawyers . . . make daily judgments are increasingly inhospitable to calm and reasoned analysis.”); Gordon, supra note 125, at 717 (“Everyone in the [big] firm feels the pressures of overburdened time and the need to make snap decisions on insufficient sleep and reflection:

‘There’s too much to do and no time to think.’ ” (citation omitted)); Nelson, supra note 118, at 783 (“The lawyers agreed that many litigators were under tremendous time pressures in their practice and, thus, often did not have very much time to reflect on what they were doing.”).

is not something you have to decide to do—so that when you are at work, making the thousands of phone calls you will make and writing the thousands of letters you will write and dealing with the thousands of people with whom you will deal, you will automatically apply the same values in the workplace that you apply outside of work, when you are with family and friends.254

Here is the problem, though: After you start practicing law, nothing is likely to influence you more than “the culture or house norms of the agency, department, or firm” in which you work.²⁵⁵ If you are going into private practice—particularly private practice in a big firm—you are going to be immersed in a culture that is hostile to the values you now have. The system does not want you to apply the same values in the workplace that you do outside of work (unless you’re rapaciously greedy outside of work); it wants you to replace those values with the system’s values. The system is obsessed with money, and it wants you to be, too. The system wants you—it needs you—to play the game.

Now, no one is going to say this to you. No one is going to take you aside and say, “Jane, we here at Smith & Jones are obsessed with money. From this point forward the most important thing in your life has to be billing hours and generating business. Family and friends and honesty and fairness are okay in moderation, but don’t let them interfere with making money.” No one will tell you, as one lawyer told another in a Charles Addams cartoon, “I admire your honesty and integrity, Wilson, but I have no room for them in my firm.”256

Instead, the culture will pressure you in more subtle ways to replace your values with the system’s.

Here is an example of what I mean: During your first month working at the big firm, some senior partner will invite you and the other new associates to a barbeque at his home. This “barbeque” will bear absolutely no relationship to what your father used to do on a Weber grill in your driveway. You will drive up to the senior part-_________________________________________________________________

254. I have provided a lengthier defense of this proposition in Schiltz, supra note 5, at 713-20.

255. KELLY, supra note 7, at 18 (“[T]he culture or house norms of the agency, department, or firm play a dominant role in the way a lawyer practices. The organization profoundly affects the lives of lawyers.”); see also Frenkel et al., supra note 120, at 698 (discussing research show-ing that “the settshow-ings in which lawyers work are among the most powerful, contextual factors shaping enactments of professionalism”).

256. Actually, someone might tell you this. See Gordon, supra note 125, at 718:

An associate who raises an ethical objection, or even just a question, about what a partner or client wants is taking a risk of being perceived as a difficult or obstructive person . . . . An associate whose ethical fastidiousness poses the risk of displeasing or even losing a client will not last long.

ner’s home in your rusted Escort and park at the end of a long line of Mercedeses and BMWs and sports utility vehicles. You will walk up to the front door of the house. The house will be enormous. The lawn will look like a putting green; it will be bordered by perfectly mani-cured trees and flowers. Somebody wearing a white shirt and black bow tie will answer the door and direct you to the backyard. You will walk through one room after another, each of which will be decorated with expensive carpeting and expensive wallpaper and expensive an-tiques. Scattered throughout the home will be large professional pho-tographs of beautiful children with tousled, sun-bleached hair.

As you enter the partner’s immaculately landscaped backyard, someone wearing a white shirt and black bow tie carrying a silver platter will approach you and offer you an appetizer. Don’t look for cocktail weenies in barbeque sauce; you will more likely be offered pâté or miniature quiches or shrimp. A bar will be set up near the house; the bartender (who will be wearing a white shirt and black bow tie, of course) will pour you a drink of the most expensive brand of whatever liquor you like. In the corner of the yard, a caterer will be grilling swordfish. In another corner will stand the senior partner, sipping a glass of white wine, holding court with a worshipful group of junior partners and senior associates.

The senior partner will be wearing designer sunglasses and designer clothes; the logo on his shirt will signal its exorbitant cost;

his shorts will be pressed. He will have a tan—albeit a slightly or-ange, tanning salon enhanced tan—and the nicest haircut you’ve ever seen. Eventually, the partner will introduce you to his wife. She will be beautiful, very thin, and a lot younger than her husband. She, too, will have a great tan, and not nearly as orange as her husband’s. You and the other lawyers will talk about golf. Or about tennis. After a couple hours, you will walk out the front door, slightly tipsy from the free liquor, and say to yourself, “This is the life.”

In this and a thousand other ways, you will absorb big firm culture257—a culture of long hours of toil inside the office and short hours of conspicuous consumption outside the office. You will work among lawyers who will talk about money constantly and who will be intensely curious about how much money other lawyers are making.

If you want to get some sense of this, leave your tax return on the photocopier glass sometime. (At least one hapless lawyer seems to do _________________________________________________________________

257. See Messikomer, supra note 118, at 759 (describing how big firm associates absorb

“knowledge, techniques, norms, rules, and behavioral patterns” through “a process of ‘osmosis’ ” (citation omitted)).

this every spring at most firms.) Every lawyer in the firm will know how much money you made last year in about fifteen minutes, and every lawyer who joins the firm during the next quarter century will hear the story of your tax return.

The lawyers in your firm are not unique. Thirty or forty years ago, talking about income and clients and fees “ ‘just [wa]sn’t done,’ ” even among Wall Street lawyers.²⁵⁸ Today, “[t]he legal profes-sion . . . has become extraordinarily self-conscious about making money,” and “the new legal journalism [has] hone[d] this self-con-sciousness to a sharp comparative and competitive edge.”²⁵⁹ Just about every issue of the National Law Journal or the American Lawyer seems to include at least one article about how much money some lawyer somewhere is making.²⁶⁰ A couple times a year, these journals publish extensive surveys of lawyers’ incomes—focusing in particular on the incomes of associates and partners in big firms.²⁶¹ These surveys are pored over by lawyers with the intensity that small children bring to poring over the statistics of their favorite baseball players. Want to know what a first year associate at Irell & Manella in Los Angeles makes? $88,000.²⁶² How about a sixth year associate at Dewey Ballantine in New York? $166,500, plus a $26,500 bonus.²⁶³ Profits per partner at McDermott, Will & Emery in Chicago?

$700,000.²⁶⁴ Reading about the incomes of your rivals will bring on either intense envy or smug Schadenfreude.

Big firm culture also reflects the many ways in which lawyers who are winning the game broadcast their success. A first year male associate will buy his suits off the rack at a department store; a cou-ple years later, he will be at Brooks Brothers; a few years after that, a _________________________________________________________________

258. GALANTER & PALAY, supra note 1, at 69 (quoting PAUL HOFFMAN, LIONS IN THE

STREET: THE INSIDE STORY OF THE GREAT WALL STREET FIRMS 71 (1973)).

259. KELLY, supra note 7, at 170.

260. See, e.g., Edward A. Adams, Have Go-Go ’80s Returned?, NAT’L L.J., Sept. 1, 1997, at A4, A4; Harvey Berkman, Starr Keeps Going and Going, NAT’L L.J., Sept. 29, 1997, at A4, A4;

Lisa Brennan, N.Y. Firms Grab Jersey Lawyers, NAT’L L.J., June 22, 1998, at A6, A6; Cynthia Cotts, How Firms Keep Their Associates on the Job, NAT’L L.J., June 8, 1998, at A1, A1; Eric Herman, The Stealth Firm, AM. LAW., Sept. 1997, at 59, 59; Morris, supra note 198, at 13; Amy Schroeder, For Top GCs, 1996 Was a Lucrative Year, AM. LAW., July/Aug. 1997, at 36, 36; Amy Singer, The Next Face of Cravath?, AM. LAW., May 1997, at 45, 45; Darryl Van Duch, Merrill Deal Paves Way for New ADR, NAT’L L.J., May 18, 1998, at B1, B1; Bob Van Voris, Secondhand Smoke Deal Draws Fire, NAT’L L.J., Oct. 27, 1997, at A7, A7; Nicholas Varchaver, What Have You Done for Me Laterally?, AM. LAW., June 1996, at 74, 74.

261. See, e.g., Fisk, supra note 177, at B11; The Am Law 100, AM. LAW., July/Aug. 1998 (insert); The NLJ 250: 20th Annual Survey, NAT’L L.J., Nov. 10, 1997, at C5.

262. See Fisk, supra note 177, at B11.

263. See id.

264. See id. at B10.

salesperson will come to his office, with tape measures and fabric swatches in hand. Similar ostentatious progress will be demonstrated with regard to everything from watches to cell phones to running shoes to child care arrangements to private social clubs. When law-yers speak with envy or admiration about other lawlaw-yers, they do not mention a lawyer’s devotion to family or public service, or a lawyer’s innate sense of fairness, or even a lawyer’s skill at trying cases or closing deals, nearly as much as they mention a lawyer’s billable hours, or stable of clients, or annual income.

It is very difficult for a young lawyer immersed in this culture day after day to maintain the values she had as a law student.²⁶⁵ Slowly, almost imperceptibly, young lawyers change. They begin to admire things they did not admire before, be ashamed of things they were not ashamed of before, find it impossible to live without things they lived without before. Somewhere, somehow, a lawyer changes from a person who gets intense pleasure from being able to buy her first car stereo to a person enraged over a $400,000 bonus.